W & K Holdings (NSW) Pty Limited v Laureen Margaret Mayo [2013] NSWSC 75

Supreme Court New South Wales

Medium Neutral Citation: W & K Holdings (NSW) Pty Limited v Laureen Margaret Mayo [2013] NSWSC 75 Hearing dates: 4 February 2013 Decision date: 04 February 2013 Jurisdiction: Equity Division Before: Sackar J Decision: Category: Principal judgment Parties: W & K Holdings (NSW) Pty Limited - plaintiff Laureen Margaret Mayo - defendant Representation: Counsel: D Allen - plaintiff H Stowe - defendant File Number(s): 2009/289575

Judgment

Ex tempore (revised 7 February 2013) 1By notice of motion in this matter the defendant seeks leave of the Court to rely upon an affidavit of David John Doberer dated 12 December 2012. The substantive proceedings involve the terms upon which the plaintiff leased certain equipment to the defendant. In broad terms, the plaintiff alleges there was an oral agreement, whereas the defendant alleges there were written lease agreements which are dated at various points from 2005 to 2008. 2The proceedings were initially listed for hearing before Justice Gzell for two days starting 22 March 2012. On that day, the plaintiff made an application to further amend its statement of claim to plead rectification. 3The application was opposed. The trial judge, Gzell J, was however satisfied that adequate reasons were provided to explain the lateness of the amendment, and it was allowed. It was said, and his Honour accepted, that a relevant piece of evidence had only become available to the plaintiff the day before the trial. 4The trial judge granted the amendment and vacated the trial dates. He ordered the plaintiff to pay the defendant's costs in the fixed amount of $10,000. 5The defence filed by the defendant to the second further amended statement of claim alleges that a Mr David Doberer, an accountant, should be held proportionately liable for the damages claimed by the plaintiff. The defendant contends that Mr Doberer played a significant role in negotiating with the plaintiff and the defendant as to the terms of the lease or leases, and indeed, acted as an intermediary and provided advice to the plaintiff in relation to the transactions. 6The defendant, of course, seeks to enforce the lease agreements, but the plaintiff in the alternative says the written documents do not reflect the true agreement between the parties, and seeks rectification. 7The plea in rectification involves the Court determining the common intention of the parties that continues to the time of the execution of a document in question, but proof of an antecedent concluded contract is not needed. It is not sufficient to show that a written document does not represent the common intention of the parties. As well, it must be shown what their common intention indeed was. Campbell JA, as he then was, in the Court of Appeal explained these requirements in Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603 at 655. This, of course, highlights the relevance and importance of the parties' subjective intentions. 8Material has been filed by the solicitor for the defendants, a Mr Mason, as to his attempts to obtain the evidence from Mr Doberer. No affidavit material has been filed at least on this motion from any representative of the plaintiffs. 9There are two reasons why it is said the preparation of the evidence of Mr Doberer has been delayed. The first is the payment of his outstanding fees. Secondly, however, as I glean it from the correspondence, is that Mr Doberer undoubtedly and unsurprisingly attempted to ensure that his position was protected, both in terms of his potential liability and any claims that might have been made against him. He wanted the defendant to assure him that no claims would be brought. That negotiation took a little while, but certainly by about September or October Mr Mason had at least some opportunity to speak to Mr Doberer. Mr Mason quite candidly in his affidavit accepts that he has been responsible for some of the delay but points to those other reasons why there has been delay in the preparation of Mr Doberer's evidence. 10The evidence of Mr Doberer runs to around 100 paragraphs, with a number of annexures, and was finally served on the plaintiff's lawyers on or about 13 December 2012. According to the court timetable, it should have been provided much earlier. Leave is therefore required by the defendant to rely upon it. 11I have heard argument this morning and I have been provided with a detailed written outline by counsel for the defendant. No evidence has been filed by the plaintiff, nor does he point in my view to any real prejudice that might be occasioned by the defendant deploying Mr Doberer's evidence. 12From at least April 2012, the detail of Mr Doberer's alleged involvement has been pleaded in the defence to the statement of claim. It must have received a good deal of attention by both parties. Indeed, it is probable that the plaintiff would have given consideration to joining Mr Doberer. Indeed, it is also probable the defendant gave consideration perhaps to such action as well. In any event, both sides have appreciated that at least the defendant was intending to place some considerable reliance on the role played by Mr Doberer. 13It seems to me that there is no real prejudice to the plaintiff and the allegation has been a matter of record for some time. I therefore propose to grant leave to the defendant to rely upon the affidavit material of Mr Doberer. 14I observe that I have also permitted the plaintiff until 14 February 2013 to put on any material that he seeks to adduce in response to Mr Doberer. I have given the parties other indulgences in relation to liberty to apply and the preparation and delivery of the court book. I observe that the matter is listed before me, on Monday, 4 March to 6 March. Mr Allen for the plaintiff has raised with me the possibility that those days, given Mr Doberer's evidence, may not be sufficient. I will assess that as and when the matter proceeds, and it will be case managed accordingly if that turns out to be the reality.